CONGRATS ‘FOR THE TIME BEING, MR PRESIDENT

IT is acknowledged that democracy is not the best form of government in the world. Except when compared to the other systems of government in existence.

For instance, democracy is essentially what has been described as “an elective dictatorship”. This means that once a government commands a majority of seats in a democratic country’s Parliament, it can do almost anything – except “change a man into a woman”. (Even that is about to change in many countries, as “gay marriage” gets legalised on an increasing scale, and on a gay relationship, one of the partners presumably takes on the guise of the opposite sex!)

Now, one of the main legs on which democracy stands is another problematic feature called the ‘Rule of Law’. Again, many think the ‘Rule of Law’ is not the best way of settling disputes. This is because ‘the law’ is often so absurd that it is best described as “an ass” – even by lawyers themselves. Yet, no other system has yet emerged which can settle disputes more peacefully than kicking the legal ”ass” into motion very hard – from court to court if necessary!

It is extremely important that the people of Ghana try very hard to understand these concepts which we have borrowed from foreign sources to govern ourselves with. For if we don’t understand them, many of us will fret when we should relax and condemn when we should accept. Worse, we shall contemplate solutions to disputes that – in political cases especially – are worse than the disputes we want to settle.

Ex-President John Kufuor was caught in one of these politico/legal dilemmas on 7 January 2013. Many in his own New Patriotic Party (NPP) thought he was ‘betraying’ the party when he went to Black Star Square to attend the inauguration of the [then] President-elect, Mr John Mahama, as our President.

But as far as Mr Kufuor was concerned, he had no choice in the matter. Our Constitution does not say that the President-elect shall not be sworn in if a case is pending before the Supreme Court challenging the validity of the election through which he became President. In other words, praxis provides no place for a “vacuum” to existat the presidential level of government in our country.

And Kufuor, who once held that high office, felt it his duty to ensure that no precedent was set whereby such an abhorrent vacuum could exist in our body-politic at some future date – to the detriment of public safety and perhaps, even national survival. (If, for instance, Ghana is attacked by a foreign country when it has no fully-accepted President, who can galvanise the nation totally to defend itself?)

But, on the other hand, what about the boycott by Mr Kufuor’s party of the inauguration? Well, the truth is that the party is not Kufuor nor is Kufuor the party. There are perfectly understandable circumstances under which Kufuor’s concerns as an ex-head of state may not be those of his party, and vice versa. For there is a subtle but real difference between party affairs and national affairs.

Even if he was still in office, Kufuor could have taken action that might be frowned upon by his own party. For instance, as head of state, Kufuor might be furnished with information by the country’s security services, which he could not share with the rest of the leadership of his party, but upon which he would need to act.

If he acted on the basis of the information, his action might be contrary to the interests of his own party. But if he was a patriot, he would have to act on the information, even if it would harm his own party. Of course, he would have to suffer the consequences of such an action — including being thrown out of the party’s leadership! But a patriot would not mind that – he would put the national interest above his party’s interest.

Similarly, if Kufuor’s judgement was that his absence from Black Star Square on 7 January might dilute or diminish the presidency of his country as such, or detract from the dignity of the holder of the office, even for a short duration (especially in the eyes of the rest of the world) then it could be an act of good conscience for him to prevent that. I haven’t spoken to him, but I imagine that these are some of the considerations that made him go to Black Star Square. Of course, his detractors might unkindly conclude that he merely wanted to preserve his membership of the club of ex-heads of state in the eyes of state protocol – a status that brings with it, quite a few privileges.

In any case, Kufuor, on his part, will have understood that his party had a political imperative not to attend the inauguration; an imperative that would override an ex-President’s subjective concerns about the dignity of the office of President. The pre-trial stage in which we are currently placed [as we await the Supreme Court’s consideration of the NPP petition against Mahama’s election as President] — is one stage where the two interests could not but diverge.

The NPP, having lodged a petition before the Supreme Court, asking for reliefs that include the nullification of the declared results of the 7 December 2012 election, on the basis of allegations which the NPP had made to the Supreme Court, could not attend the inauguration, as that would be seen by its supporters to be prevarication on the part of the NPP leadership.

If, while protesting at the alleged “fraudulence” that it claims to have observed in the declared results, the NPP were to take part in the inauguration of the beneficiary of the fraudulence, –whom it had taken to court – the NPP would be guilty not only of hypocrisy but also, of being remiss in its duty to ensure that whoever seeks to “steal” an election in Ghana at a future time, would have a heavy political and social price to pay for doing that. In other words, the political class in the country would not stand idly by and fold its arms, if and when it observed that malpractices had occurred in an election.

Despite the complexity of the scenario which I have outlined above, a clear head would lead us to the conclusion that the scenario ensures that both Ghana and the system of government it has chosen for itself – democracy and the rule of law — are in a ‘win-win’ situation. Democracy has both a macro and a micro aspect to it. Both aspects stem from the same principle, but the principle can be acted out in different ways to achieve the same end – the peaceful resolution of conflicting political demands.

While we are on that issue, it should also be noted that it was perfectly in order for the Chief Justice of the country to have been the person to fulfil the constitutional duty of swearing-in the President, despite the fact that she is a member of the very Supreme Court that will adjudicate on the issue of whether the President was fraudulently elected or not.

For, you see, under the Constitution, the Chief Justice wears two hats – one with which to swear-in the President, and the other to declare the President’s election invalid, if the evidence leads that way. There is no conflict in the two duties: the Constitution endows the Chief Justice, like God in the Book of Job, with the power of being able both to provide and take away. And we, if we are obedient to the Constitution, must “bless” the Chief Justice, whether she “doth provide”, or “doth take away.” Just as Job, though suffering terribly, was able to say, rather stoically, “Blessed be the name of the Lord!”

These are intricate constitutional issues whose working-out must necessarily prove awkward to individuals and groups in our country. But we must be mature enough – yea, ‘civilised’ enough even – to ride any awkwardness that is bound to occur.

For, as I have pointed out, though the ‘Rule of Law’ may not be perfect, it is better than anything else. Certainly, it is better than organising a wrestling match at the Accra sports stadium and asking Nana Akufo Addo and President Jphn Dramani Mahama to pit their physical strength and wrestling skills against each other. And if we cannot settle it by wrestling, how much more dare we settle it by resorting to violence, in gthe form of cudgels, guns or machetes?

Yes, what the country must extol from both the NPP and the NDC is that they should actively educate their members to accept whatever decision the Supreme Court eventually hands out. The supporters of Mahama must on no account convince themselves that because he has been inaugurated, he cannot any longer be divested of the presidency. He could be divested of it even if he wins the Supreme Court case – through a process in the Constitution called “impeachment”. (The Constitution clearly states the grounds upon which a sitting President may be “impeached” and removed from office.)

In the same way, the supporters of the NPP would do well to prepare themselves for the possibility of the NPP’s petition being defeated at the Supreme Court. For under the Rule of Law, however strong the case you may present to a court –such as the Supreme Court — you cannot be a judge in your own cause. That is one of the “awkward” aspects of the ‘Rule of Law’. You do your best and leave it to others to rule in your favour or against you. If it goes against you, you swallow hard and move on. You know that at least, you put your best foot forward!

It is in the light of these weighty ‘conditionalities’ that I congratulate President Mahama, who, in my judgement, is our substantive President ad interim, “until”!

“Until” what?

“Until” the Supreme Court says unequivocally, “No, Sir! You cannot continue to be our President, because we find from the evidence before us that you did (a), (b), (c) and (d), all of which are against laws (1), (2), (3) and (4).”